Merc Law Ch 4

CHAPTER 4 – DISMISSAL

 In terms of the Common law an employer could at any time dismiss an employee
with notice
 In case of immediate (without notice) dismissal, employer had to provide a reason
(except if State was the employer)
 Employees have gradually gained more protection over time:
 Labour legislation
 ILO Conventions
 Code of Practice (Dismissal)

STRUCTURE SBOUT THE FAIRNESS OF DISMISSAL AND HOW TO APPROACH:

• Step 1: Is the person being dismissed an employee? If not, person will not enjoy
protection of LRA, and an independent contractor will have to bring forth a claim of
breach of contract against the employer in the civil courts.
• Step 2: Was there a ‘dismissal'?
• Step 3: If yes, differentiate between the different types of dismissal:
(a) Automatically unfair dismissal: Employer cannot try to justify dismissal
(b) Other forms of dismissal

IF ESTABLISHED DISMISSAL WAS NOT AUTOMATICALLY UNFAIR: Onus rests on
employer to prove that the dismissal was substantive and procedurally fair. A fair procedure
must also be followed prior to the dismissal.

 Only three permissible reasons for dismissal:
- Misconduct
- Incapacity
- Operational requirements

• Step 4: Determine if dismissal was unfair
• Step 5: If so, remedies available to the employee who was unfairly
dismissed
- Under the LRA
- Remember, however, that an (unfair) dismissal can also be a breach of
contract - claim for breach of contract in civil court

MEANING OF DISMISSAL

DEFINE: The term ‘dismissal’ in the LRA is much wider than in threcommon law meaning od
dismissal. Ut is defined as follows in section 186: “Dismissal” means that-

(a) an employer has terminated employment with or without notice;
(b) an employee employed in terms of a fixed term contract of employment reasonably
expected the employer
(i) to renew a fixed term of employment on the same or similar terms but the
employer offered to renew it on less favorable terms, or did not renew it, or
(ii) to retain the employee in employment on an indefinite basis but otherwise on the
same or similar terms as the fixed term contract but the employer offered to retain the
employee on less favorable terms, or did not offer to retain the employee.
(c) an employer refused to allow an employee to resume work after she took maternity leave
in terms of any law, collective agreement, or her contract of employment; or
(d) an employer who dismissed a number of employees for the same or similar reasons has
offered to re-employ one or more of them but has refused to re- employ another; or

, (e) an employee terminated a contract of employment with or without notice because the
employer made continued employment intolerable for the employee.
(f) an employee terminated a contract of employment with or without notice because the new
employer, after a transfer in terms of sec 197A provided the employee with conditions or
circumstances at work that are substantially less favorable to the employee than those
provided by the old employer.

 These are the specific circumstances that qualify as dismissal - onus is on the
employee to prove it
 Then the employer must prove that the dismissal was fair (substantive and procedural)

AUTOMATICALLY UNFAIR DISMISSAL

Dismissal on one of the grounds in S 187 = automatically unfair dismissal
• Employer cannot prove that the dismissal was fair
• Except for one specific form of automatically unfair dismissal (art. 187 (1) (f) - there are
possible grounds for justification available to the employer)
• Remedies in case of dismissal
- General unfair dismissal = compensation up to a maximum of 12 months'
salary
- Automatically unfair dismissal = compensation up to a maximum of 24
months' salary

Section 187 LRA Ground for Automatic Dismissal
1. Exercising right to freedom of association
2. Participating in a protected strike
3. To force employee to fulfil claim of the employer
• Mauchle v Precision Tools; Fry’s Metal v NUMSA
4. Because the employee exercises their rights in terms of the LRA (victimisation)
5. Pregnancy
• Botha v SA Import Export International CC; De Beer v SA Export Connection
6. Discrimination
7. Transfer of business
8. Protected disclosures

Despite Section 1 (f) (that prohibits unfair discrimination):
• Where the reason for the dismissal is alleged unfair discrimination, directly or
indirectly, on any arbitrary ground, including: Race, gender, sex, ethnic or social
origin, colour, sexual orientation, age, disability, religion, conscience, belief, political
opinion, culture, language, marital status or family responsibility;

A dismissal may be fair if the reason for dismissal is based on:
- Inherent requirement of job
- Dismissal based on age

INDIVIDUAL GROUNDS FOR AUTOMSTICALLY UNFAIR DISMISSAL SEC 187

Section 188 of the LRA provides that

(1) A dismissal that is not automatically unfair, is unfair if the employer fails to prove— (

a) that the reason for dismissal is a fair reason—
(i) related to the employee’s conduct or capacity; or
(ii) based on the employer’s operational requirements; and
(b) that the dismissal was effected in accordance with a fair procedure.